About the CLOUD Act and lists of ‘safe countries’

March 17, 2018

For the weekend two long pieces (copied below in full) about a seemingly technical issue but one that could have big consequences for human rights defenders. The key issue is that foreign government who wanted to obtain information on a social media user from a US tech company (such as Microsoft, Google, Apple and Facebook) had to go through a cumbersome procedure using diplomatic procedures (MLATs, – mutual legal assistance treaties). The draft CLOUD Act (Clarifying Lawful Overseas Use of Data) proposes to make it easier for governments to get these data directly from the companies – and here is the tricky part – as long as these foreign government are on a kind of ‘safe list’ with regard to human rights. And that is where the questions come in according to the specialists below. And there are quite a few other worries.

(CN) – With a pleasant-sounding name and acronym, the CLOUD Act stands for Clarifying Lawful Overseas Use of Data, but human rights groups take a far less sunny view of the bill than the tech giants pushing for its passage through Congress.

Possibly heading to Capitol Hill next week, Microsoft, Google, Apple and Facebook have lined up behind the legislation that overhauls how tech companies share data with foreign governments without notification or oversight.

Amnesty International’s U.S. director Naureen Shah depicted the legislation as a dystopic threat to human rights and press freedom globally while explaining her “grave misgivings” with the bill.

“The CLOUD Act jeopardizes the lives and safety of thousands of human rights defenders around the world at a time when they face unprecedented threats, intimidation and persecution, as we have documented in recent years,” Shah told reporters at a press conference on Thursday.

The CLOUD Act’s proponents and critics agree that the bill arose from the need to plug a gap in domestic and international law.

For decades, foreign governments requesting information from a U.S. company would have to work through diplomatic procedures known as MLATs, short for mutual legal assistance treaties.

“This process – from a privacy and human rights standpoint – is fairly rights-respecting,” the American Civil Liberties Union’s counsel Neema Singh Guliani said at a press conference from Washington.

For U.S. and foreign prosecutors, the MLAT process is cumbersome and gives the targets of criminal investigations cover to hide incriminating data in servers abroad.

This controversy came to a head in 2013, when New York federal prosecutors sought to circumvent the process to obtain emails of a target of a drug-trafficking investigation held on Microsoft’s servers in Dublin, Ireland. Microsoft went to court to protect the privacy of its users, waging a protracted legal battle currently pending before the U.S. Supreme Court.

Perhaps unwilling to gamble on Supreme Court victory, Microsoft and other companies have backed the CLOUD Act as an alternative.

“One of the things the bill would do is that it would moot the Microsoft Ireland case,” the ACLU’s Guliani noted.

For rights groups, however, Congress’ solution would be worse than the problem. The CLOUD Act lets countries that pass unspecified human rights vetting bypass government vetting and work directly with tech companies for information requests.

“We’re essentially relying on tech companies to be a kind of failsafe,” Shah told reporters.

Once a foreign government is safe-listed, Shah said, that nation can freely request information held by tech companies without congressional oversight for any particular request for five years.

That remains true even if a foreign government’s human rights record undergoes a dramatic decline during those years, as happened in Turkey over the last half decade.

“That’s a problem because we see governments around the world in a human rights freefall,” Shah noted.

Amnesty International has unique insight into that danger: The Turkish government jailed its Turkey chair Taner Kilic in an ongoing crackdown on journalists, human rights workers, and other critical voices that country has targeted in the wake of a coup attempt against its President Recep Tayyip Erdogan.

“If you had looked at Turkey in 2012 or 2013, and matched it against the criteria in this bill, Turkey might have passed muster,” Shah said. “Of course, we know that especially since the coup in mid-2016, Turkey has become the world’s largest jailer of journalists.”

“More than 50,000 people at this point in Turkey have been swept up in their crackdown, including the chair and the director of Amnesty International, who were held, one of whom remains in prison, both of whom are being charged with terrorism offenses,” she added.

Under the CLOUD Act, Shah said, Congress would not be able to intervene if a safe-listed nation followed Turkey’s path.

Should that system fail, it is unclear that either the target of a foreign government’s investigation or the U.S. government would even know it.

The CLOUD Act offers the promise of subjecting governments to compliance reviews, but Guliani, the ACLU’s counsel, called this measure meaningless without individualized notice to users or the federal government.

“How can there be real compliance reviews if the U.S. government isn’t getting notice of individual requests?” she asked.

Guliani added that the CLOUD Act would also enable other governments to circumvent Wiretap Act restrictions against real-time interception.

Opposition from civil society groups has kicked into high gear out of fears that the CLOUD Act may get attached to an omnibus budget bill heading next week to Congress.

Joining the ACLU and Amnesty International, a coalition of 22 other groups signed a letter to elected representatives last week stating: “We urge you to oppose the CLOUD Act, and efforts to attach it to other pieces of legislation.”

As the omnibus budget has not yet been released, it is unclear whether that fear will come to pass.

At a time when human rights activists, dissidents and journalists around the world face unprecedented attacks, we cannot afford to weaken our commitment to human rights. But the recently introduced CLOUD Act would do just that.

The bill purports to address complaints that current mechanisms for foreign governments to obtain data from U.S. technology companies are slow, requiring review by the Justice Department and a warrant issued by a U.S. judge pursuant to the mutual legal assistance (MLA) process. The solution it proposes, however, is a dangerous abdication of responsibility by the U.S. government and technology companies.

Writing on Lawfare, Peter Swire and Jennifer Daskal have penned a pragmatist’s defense the CLOUD Act, arguing that things don’t work well now, that they could get worse and that this is the best option on the table. But even if we accept Daskal and Swire’s dire view of the state of current affairs, their argument leaves a lot unexplained—such as why an alternative framework or improved version of the CLOUD Act is not tenable, why efforts to pass the bill without any public markups of the legislation or the opportunity for amendments are advisable, and why no major international human rights organizations support it. Two of the largest human rights organizations, Amnesty International and Human Rights Watch, oppose the bill, along with over twenty other privacy and civil liberties organizations. (Swire and Daskal do note that some of these groups participated in a working group on this issue, though they don’t describe the strenuous objections made during that process.)

Most importantly, however, Daskal and Swire do not address how this bill could fail human rights activists and people around the world.

The very premise of the current CLOUD Act—the idea that countries can effectively be safe-listed as human-rights compliant, such that their individual data requests need no further human rights vetting—is wrong. The CLOUD Act requires the executive branch to certify each of these foreign governments as having “robust substantive and procedural protections for privacy and civil liberties” written into their domestic law. But many of the factors that must be considered provide merely a formalistic and even naïve measure of a government’s behavior. Flip through Amnesty International or Human Rights Watch’s recent annual reports, and you can find a dizzying array of countries that have ratified major human rights treaties and reflect those obligations in their domestic laws but, in fact, have arrested, tortured and killed people in retaliation for their activism or due to their identity.

In the case of countries certified by the executive branch certifies, the CLOUD Act would not require the U.S. government to scrutinize data requests by the foreign governments—indeed, the bill would not even require notifying the U.S. government or a user regarding a request. The only line of defense would be technology companies, which hypothetically could refuse the request and refer it to the MLA process, but which may not have the resources, expertise, or even financial incentive to deny a foreign government request. Likewise, the bill requires that countries permit “periodic” reviews for compliance with civil liberties and privacy protections, but does not specify what these reviews will entail. It also doesn’t require even a cursory individual review of all orders or explain how the U.S. government can effectively ensure compliance in a timely fashion when without being aware of requests in real time. For this reason, the periodic U.S. government reviews contemplated in the bill are an insufficient substitute for case-by-case consideration.

Daskal and Swire point to other safeguards: Judges or independent authorities in the foreign country would review their government’s requests for data, they argue. But what about when courts greenlight, rather than check, police and intelligence services to go after human rights activists? This is not a problem confined to a small set of countries. In 2016, Amnesty International recorded at least 68 countries in which human rights defenders were detained or arrested based solely on their work.

Similarly, the CLOUD Act would not prevent harm to human rights activists and minorities in cases where a country experiences a rapid deterioration in human rights. Under the CLOUD Act, once a foreign government gets an international agreement, it is safe-listed for five years—with no built-in mechanism to ensure that the U.S. government acts quickly when there is a rapid change in circumstances.

For example, in early 2014, Turkey may have met the CLOUD Act’s vague human rights criteria; Freedom House even rated it a three and four on its index for political and civil rights. But since the attempted coup in mid-2016, the Turkish government has arrested more than 50,000 people—including journalists and activists such as the chair and director of Amnesty International’s Turkey section—many on bogus terrorism charges. According to U.N. experts: “Most of these accusations of terrorism are based solely on actions such as downloading data protection software, including the ByLock application, publishing opinions disagreeing with the Government’s anti-terrorism policies, organizing demonstrations, or providing legal representation for other activists.”

Under the CLOUD Act, neither Congress nor U.S. courts would be able to prompt a review or a temporary moratorium for a case like Turkey. Users, without notice, would have little practical ability to lodge complaints with the U.S. government or providers. Even if the U.S. government were to take action, the CLOUD Act fails to ensure a sufficiently quick response to protect activists and others whose safety could be threatened.

In such a situation, the only real fail-safe to prevent a technology company from inadvertently acceding to a harmful data request is the technology company itself. But would even a well-intentioned technology company, particularly a small one, have the expertise and resources to competently assess the risk that a foreign order may pose to a particular human rights activist? Would it know, as in the example above, when to view Turkey’s terrorism charges in a particular case as baseless? In many cases, companies would likely rely on the biased assessments by foreign courts and fulfill requests.

Daskal and Swire argue that without the CLOUD Act, foreign governments with poor privacy standards will turn to data localization, which would pose greater human rights risks. But if the bill’s criteria are as strong as needed to protect privacy and human rights, those same foreign governments will not qualify for an international agreement—and so they may still push for data localization. The bill also does nothing to prevent a foreign government with an international agreement from data localization. If a technology company refused a government’s requests, the government could threaten to retaliate with localization and pressure the company to comply.

Finally, Swire and Daskal fail to address the CLOUD Act’s numerous ambiguities as to what human rights standards are a predicate to inclusion in the new data club the bill purports to create. Indeed, many of the criteria listed are merely factors that must be considered, not mandatory requirements. To highlight just a handful of the deficiencies in the bill:

The bill states that the Justice Department must consider whether a country respects free expression, without stating whether free expression is defined under U.S. law, international law, or a country’s own domestic law;

The bill states the Justice Department must consider whether a country respects “international universal human rights” without definition or clarity regarding how to assess this (indeed, this is not a recognized term in U.S. or international law);

The bill requires that requests be based on “articulable and credible facts, particularity, legality, and severity regarding the conduct under investigations”—a standard that is, at best, vague and subject to different interpretations, and is likely lower than the current probable cause standard applied to requests;

The bill fails to prohibit agreements in cases in which a country has a pattern or practice of engaging in human rights abuses, nor does it require an assessment as to whether there is effective central control of law enforcement or intelligence units;

The bill fails to require that countries meet any standards for metadata requests—leaving companies free to provide this data to human rights abusing countries without restriction;

For the first time, the bill allows foreign governments to wiretap and intercept communications in real-time, without even requiring governments to adhere to critical privacy protections in the Wiretap Act (such as notice, probable cause, or a set duration); and

The bill permits broad information sharing between governments, allowing countries (including the U.S.) to obtain information from foreign partners under standards that may be lower than their own domestic law.

These ambiguities provide the Justice Department with significant flexibility regarding the human rights standards a country must meet. What’s more, there’s no way for Congress or the judicial branch to practically act as a check in cases in which the executive branch makes the wrong decision. Country determinations are not subject to U.S. judicial review, and Congress would need to pass legislation within 90 days, likely with a veto proof majority, to stop an agreement from going into effect—an extremely high hurdle that will be difficult to overcome.

In light of this, it’s far from clear that, as Daskal and Swire write, the bill “will raise privacy protections on a global scale.” If members of Congress and technology companies want to address concerns with the MLA process while protecting privacy and human rights, they should abandon the CLOUD Act and craft a rights-respecting solution.